No human love is illegal

The love story of Jessica Allen and Hector Piedra began as so many do: through pure happenstance.

It was November 2001. She just returned from studying Spanish in Mexico. He was playing with a new band. Jessica’s mom suggested she check out the new Spanish-language service at her Methodist church in Olathe. And there he was. A Mexico native in her hometown, wearing an attractive suit and singing her new language.

Soon they were dating. Later they would marry and have a child. It was a natural enough progression of events for a young couple.

But staying together would involve extraordinary challenges and the navigation of laws not commonly known or mentioned in our country’s interminable wrestling match with immigration.

***

In the beginning, Hector was an undocumented immigrant. He came to the United States in 1999 at the invitation of neighbors from Cuernavaca, the southern Mexico city where he was reared. The neighbors owned a bakery in Chicago, and he knew he had all the skills necessary to fix it up. He could do electrical wiring, plumbing, welding, construction–whatever it took. It was a good opportunity. Although he owned a business in Cuernavaca and had been making the equivalent of about $155 a week, a good wage in Mexico, in Chicago he was paid $15 an hour.

But his employers also charged him $1,100 a month in rent and utilities for the apartment he shared with seven others. He realized he was being taken advantage of. So one day he got in the car he’d bought and started driving, knowing nobody and nowhere besides the place he was leaving behind.

Hector wasn’t daunted by the journey.

“It’s easy to get around in this country,” he says. “Every town has a Main Street, a Broadway. The numbered streets run in one direction and the other streets run in the opposite direction. And every city looks the same, has the same things.”

He also didn’t worry about how he’d survive.

“I’ve always known I can get work. I can cook, and if I can’t cook, I can play music. If I can’t play music, I can do remodeling…I didn’t finish school. My parents separated when I was six, and my life started at age eight, when I began working in the grapes—working like an adult.”

Hector decided to drive until he ran out of money. That happened around 18th Street in Kansas City, Kansas. A man in the parking lot where he stopped bought the tools he was carrying, providing him some cash, but for the next month he slept in his car. Then, he was hired to do maintenance at a nice apartment complex in Platte City and moved in there. Music was his passion and pastime.

As for his future as an immigrant in the US, Hector had no particular illusions.

“I just figured I’d never be able to legalize,” he says.

He knew the answer to the frequently asked question about illegal immigrants: Why don’t they do it the legal way? Simply, there are very few legal ways for a person like Hector to come to the US, or to become legal once here. And the ways that do exist are long, complicated, expensive, and never guaranteed.

For most Mexicans, the most common path to legal permanent residency (having a “green card”) is through petition by a family member—not just any member, but only a parent or spouse who is a US citizen or legal permanent resident; a US citizen child (21 years old or over); or a US citizen sibling. The best scenario is marriage to a US citizen – and Hector never expected that to be an option.

***

Then came Jessica.

After graduating from DePaul University in 2000, Jessica returned to Kansas City with her young son, Jahleel and began working as an assistant to an immigration attorney, a first step toward her own desired career as an immigration lawyer. This was when she met Hector and she understood the problems they would face as a couple, because she had helped with the cases of US citizen-undocumented couples. She knew that even this most direct route to legalization was fraught with pitfalls and could even be a dead end.

“I’d seen other people go through the same process, and they had a really hard time,” she explains. “Honestly, we weren’t in a hurry to get married, because we knew it didn’t really matter—we didn’t think there was any reason to rush.”

As post-9/11 anti-immigrant sentiment continued to fester in the US, however, Jessica and Hector decided they’d better get started so that Hector might, eventually, have legal status. They married in April 2004 and two months later, with the help of the immigration attorney Jessica worked for, filed a petition with the Citizenship and Immigration Service (one of the three agencies that replaced the Immigration and Naturalization Service).

A year and a half later, the paper that would allow them to start the next stage of the process arrived in the mail: an appointment notice for Hector’s interview at the US Consulate in Juárez, Mexico, two weeks later. They hadn’t known when the notice would arrive, and while waiting, Hector had no legal work permit and no guaranteed protection from deportation. They weren’t even sure they wanted to respond to the appointment notice, and in any case, two weeks wasn’t enough time to prepare for what would be a separation of at least several months. They arranged for the appointment to be postponed until January 2006.

This is the inconvenient truth for many married couples living in our country. In order for the foreign spouse of a US citizen to be obtain legal permanent residency, the foreign spouse must leave the US, travel to his or her home country, and be interviewed at a US Consulate there. That alone would be difficult and expensive, but there’s more.

Given the limited chances to do it the legal way, a lot of foreigners live illegally in the US before they marry and have a petition filed to legalize. Upon exiting the US for their appointment at the Consulate, they trigger a provision in immigration law known as the 3-year or 10-year bar: Anyone “unlawfully present” in the US after April 1, 1997 for more than 180 days is barred from reentering the country for three years. For anyone unlawfully present for a year or more, the bar jumps to ten years.

These bars apply to anyone who entered the US without legal permission as well as anyone who entered with a kind of legal status that has since expired. They apply to people like Hector, who legally marry a US citizen, have a US citizen child, file the appropriate immigration paperwork, and leave the US in order to comply with legalization requirements.

There is a way around the bars, known as a “hardship waiver.” To get one, applicants must prove that their absence from the United States would cause “extreme hardship” to a US citizen or lawful permanent resident parent or spouse. And, they have to wait inside their home country until they learn whether they are approved for a waiver, with no guarantee that it will be.

Hector and Jessica knew this before he left and therefore, Hector didn’t want to go. For one thing, they now had a daughter, Raquel.

But Jessica was worried about the growing commonness of mean-spirited immigration legislation, particularly HR 4437, introduced in 2005. The bill would have made unlawful presence in the US a felony, and also would have criminalized aid knowingly provided by charities, churches, and individuals to undocumented immigrants. Although HR 4437 never made it past the House, the support it enjoyed by lawmakers and parts of the American public illuminated the possibilities of man’s inhumanity to immigrants.

“We were afraid things would get worse for immigrants,” says Jessica.

So they decided to take their chances. Ted Garcia, an immigration attorney and friend Hector had made through a mariachi band, helped them prepare a waiver application, and everyone braced themselves for what they thought, based on similar cases at the time, would be a four- to six-month wait.

When Hector arrived for his appointment at the Consulate, he had plenty of company.

“There was a long, long line lined up all around the block outside the building,” he said.

Some people in line didn’t know about the 3-year and 10-year bars. They’d already paid a
non-refundable $100 application fee, only to learn that they couldn’t reenter the US.

“You get inside the Consulate and show them your papers, and they say, ‘Yeah, you’ve got a really nice family [in the US], but you have a 10-year bar,’” Hector explains.

Many people don’t have money to pay the waiver application fee ($265), nor help to prepare the application. Hector knows of people who have waited two to four years to get back into the US.

At first, Hector was told he would have to come back for a second appointment to file his waiver application, but he objected. He’d already traveled more than 1,100 miles from his family’s home in Cuernavaca to the border city of Juarez, and spent about $300 for travel and accommodations. Finally, he was allowed to file on the spot. Many months later, when his waiver was finally approved, he had to pay another $100 appointment fee at the Consulate plus, of course, another round of travel and motel costs.

In Mexico, Hector rediscovered some of the wonderful things about life there.

“There, you can go to the market and get meat that was just slaughtered. It’s not like here, where your meat travels all over the country in a truck before you get it. And if you want a meal, you just go down the street to the woman who makes lunch from her home.

“You can get a soda from your neighbor’s store that they run out of the front of their house. You don’t need a car there. But here, you do. I see people waiting around here [near 7th Street in Kansas City, Kansas] a long time for the bus, and the bus doesn’t run all the time. Here, if you don’t have a car, you might not survive.”

But it wasn’t long before he longed for the US.

“I missed it as soon as I had to reach into my pocket. In Mexico, you work for 10 hours—and I mean hard work, because there you don’t have a machine to mix concrete—you do it by hand—and you get paid $12 for those 10 hours.” Even that is considerably more than the $25 to $30 a week that Hector says is a typical factory worker wage in Cuernavaca.

And the customary assumption, that low prices for goods goes along with low wages in Mexico, is not true.

“In Mexico, what I earned in a week went for rent and utilities,” says Hector. “A can of soda there is five pesos, which is 50 cents here. Cuernavaca has all the same stores Kansas City does—Lowe’s, Office Max, Pizza Hut, Wal-Mart [the largest private employer in Mexico]—and the prices are the same. A pizza costs $10 to $12 there, just like here. How can you afford it?

“In the US, you can work for a while and afford a down payment on a house. In Mexico, you might work for seven years and still not be able to afford one. That’s where the economy is in Mexico.”

During the first seven years of NAFTA (1994-2001), the real value of the average manufacturing wage in Mexico dropped 21 percebt; the real value of the minimum wage fell 22% between 2000 and 2006. Meanwhile, the cost of the official “market basket” of food, housing, and essential services in Mexico has risen by 247% since NAFTA. Many products, including milk, bread, and beans, cost even more on the Mexican side of the border than on the US side. Annual Mexican immigration to the US during NAFTA has been 500,000 to one million. And it’s estimated that cheap, US corn imports under NAFTA may eventually displace as many as 15 million Mexicans.

***

Back in the US, Jessica was attending law school part-time at UMKC, working 20 hours a week at a downtown law firm, selling Mary Kay cosmetics for extra income, and taking care of Jahleel and Raquel.

Soon after Hector left, there was a series of robberies in their neighborhood in northeast Kansas City, and Jessica was afraid she and the kids would appear too vulnerable without an adult male in the household. So they moved in with her mother, in southern Johnson County. But that made for many hours in the car between home, school, and work. A friend who lived near the Plaza offered space on the upper floor of her house, and they moved again.

“After awhile, I just stopped unpacking boxes,” laughs Jessica, from the family’s newest home in Kansas City, Kansas.

In the midst of surviving their predicament, Jessica (her email address is “luchadoramama,” or “fighter-mother)” crusaded to change the system that created it. She took leadership roles in the Hispanic Law Association and National Lawyers Guild chapters at UMKC, attended meetings of immigration lawyers, and spoke at immigration reform rallies and other events. She shared her family’s story and called for immigration reform that would reunite families, including the restoration of section 245(i).

The tale of 245(i) involves the classic characters of US immigration law: revenue, illogic, big bureaucracy, and misplaced blame.

It used to be that the legalization procedure for immigrants like Hector was similar to how it is now: spouses and children of US citizens and permanent residents were required to leave the US and process through a US Consulate in their home countries. The difference was, there were no 3-year and 10-year bars—those didn’t come along until 1996. So, there was no problem re-entering the US.

Then in 1993, the World Trade Center in New York was badly damaged by a car bomb planted by Arab Islamic terrorists, some of whom had entered the US with fake passports or without proper inspection. This raised questions about why the consulates weren’t doing a better job of screening non-immigrant visitors and students before they were given visas to come to the US.

The reason? Consular officials were too busy interviewing immigrants who were already living in the US and had already been screened by INS and (back in those days) issued a work permit. Time spent with immigrants like Hector was time away from the inspection of would-be bombers.

So, section 245(i) of the Immigration and Nationality Act was enacted to allow immigrants to adjust their status and become legal permanent residents without having to leave the US. The provision requires immigrants who have been living in the country illegally to pay a $1,000 penalty. In return, they are able to complete their legalization processes at an Immigration office in the US.

It was a win-win-win situation: Immigrants didn’t have to leave the country and miss work or school (or loved ones). INS, instead of the State Department, got all the fees from the legalization process, plus an extra $1,000 a head. Consulates had more time to carefully screen visa applicants. For once, here was an immigration solution that did well at solving the problem it was designed to address.

But as Kansas City immigration attorney Suzanne Gladney quips, “Since 245(i) was such a good idea, Congress put a ‘sunset’ date into it so it would be looked at to see if in fact it was a good idea.”

By the time that date rolled around in 1997, anti-immigrant sentiment was on the rise, and 245(i) opponents complained that “illegals” were getting too good of a deal. Indeed, 245(i) has been recklessly mischaracterized as an amnesty, when in reality, the immigrants it applies to must meet all the eligibility requirements for legalization.

Nonetheless, Congress let the sun set on the provision. 245(i) was restored for a few months during the late part of the Clinton Administration, but was ended again and has yet to be resurrected. Currently, only immigrants who began the legalization process prior to April 30, 2001, can pay the $1,000 penalty and stay in the country to legalize. So, Jessica and Hector met about six months too late, and were married in the comparative dark ages of legalization policy.

***

By June 2006, the couple still had no word about whether Hector’s waiver application would be approved. Jessica’s strenuous juggling of school, work, kids, and activism would continue.

But the hardest part, she says, was the sadness.

“By the end, the kids were in bad shape. We were all in bad shape. Raquel was crying every day.”

Hector, meanwhile, was experiencing the strange partial return to life before the US, marriage, and fatherhood.

“Being away like that makes you think, do I want to make my life in Mexico, or do I want to pursue a future with my family in the US?”

After all, Hector had never really thought about coming to the US until the offer from his neighbors. Once here, he wasn’t sure that he would stay, and he certainly didn’t have designs on getting papers through a citizen wife. It had all happened without planning, in ways he could never have predicted.

“I lived well in Mexico before I came. I worked for myself,” he says, recalling the welding business he owned.

But it is clear that what has happened since then, however random, has changed things forever for Hector. He is not the person he was before, and he can’t go home again.

“Jessica is a very strong support to me,” he says. “When I was back in Mexico, I could have started a business again, but I couldn’t—I just couldn’t do it without her.”

Not every immigrant forms such binding ties, however, he said.

“For every 10 Mexicans who go to the US, there are three or four who go back (to Mexico), because of nostalgia, because they miss it too much.”

That was the case with his brother, he says, who came to work in the US for a while but went back, even though he had no spouse or job to return to. Returning may alleviate the longing, but as Hector discovered, the economic reality of being in Mexico returns, too.

“My brother was back for only three weeks before he called and asked if I could send him money.”

In November 2006, the mail brought news that Hector’s waiver was approved. He was back in Kansas City by mid-December, just a few weeks before Raquel’s fourth birthday.

The family is adjusting to being reunited—Jessica no longer a single mom, and Hector no longer a virtual bachelor. He’s studying music with new gusto and plays the guitar, bass guitar, upright bass, and piano—and sings. His band, Los Suavacitos, have standing gigs at Mexican restaurants on weekend nights.

“That’s our goal this year,” he says, “To find all the strategic places to play at in the city.” He may also establish a new business as a contractor for remodeling and construction.

When asked what they hope people can learn from their 11-month separation, Hector and Jessica cite belief in an authority higher than immigration law.

“Your efforts to legalize don’t matter as much as your faith in God and your family, because every moment we were desperate, something happened to make it easier,” says Hector.

Jessica agrees that faith was helpful and says the separation has even strengthened their relationship.

“But,” she adds, “We also lost a lot during the year. Hector lost a year out of the kids’ lives, a year of work here.”

There is financial impact, too. Hector still has paperwork to complete to get his work permit and legal permanent resident card. All told, he and Jessica will have spent at least $1,440 for filing and fingerprint fees and a required medical exam by the time his legalization process is concluded. If proposed fee increases are approved this spring, the same process could cost another couple more than $2,400.

The current legalization process for couples and the “catch-22” of the 3-year and 10-year bars are examples of how the US immigration system is broken, says Jessica. If more Americans knew how immigration laws separated families like hers, she thinks they would feel differently about immigration reform.

Referring to advice that law professor Steven Legomsky gave at a recent talk at UMKC, Jessica says, “We should ask people, not, do you want to restrict immigration, but do you believe that a US citizen and her husband should be able to live together?”

And beyond this is the question, do we believe everyone should be free to fall in love with the people and places they wish, to have their lives shaped by chance meetings and the ties that bind us to each other without regard for national origin or legal status?

Maybe Hector should never have come to the US, since he couldn’t do it legally; he may not even have been able to get a visitor’s visa, since only Mexicans who can demonstrate a certain level of financial and job security—that is, no reason to work in the US—can obtain one.

But when Jessica went to study Spanish in Mexico, she didn’t even need a passport. She was able to immerse herself in another culture and language and see the sites of her national neighbor nearly without restriction, and she can go back as many times and as often as she likes.

We know that as long as any country in the world is even slightly richer than any other, workers will migrate, even if they have to do it illegally. And while it may not be the role of migration policy to level economic inequalities, the policies that exist remind us of the real definition of poverty: a lack of options—not just purchasing options, but life options.

At the least, believes Jessica, families shouldn’t be forced to make choices that divide them.

“We’re grateful that it’s all turned out ok,” she says. “But it should be easier than this.”